December 21, 2011

Law of lawyering case, U.S. v. Jicarilla Apache Nation, provides special insights into Justice Sotomayor's jurisprudence?

So says John Paul Rollert, at Slate. (h/t: How Appealing) My summary of the case is below.

It was an 8-1 decision upholding the federal government's assertion of attorney client privilege. Justice Sotomayor didn't like the idea that the federal government was being called a trustee but was exempting itself from the strict fiduciary duties that usually burden trustees. Rollert's final graf:

"Jurisprudential prerogatives, and the moral imperatives that underpin them, are the stuff of lonely dissents, which tend to be less about the law than its shortcomings. They are written accounts of a judge’s reckoning with the oldest dilemma of her profession: that what is legal is not necessarily just, and what is just is not necessarily legal. As Sotomayor attests, they can be telling in their despair."

[Summary] In an action brought by the Jicarilla Apache Nation (“Nation”) against the federal government (“Government”) for mismanagement of trust funds, the Supreme Court of the United States denied the Nation’s request for production of trust-related, attorney privileged communications between the Government and the Government’s lawyers. The Nation had prevailed below by establishing the common law “fiduciary exception” to the attorney client privilege. That is, the Nation had shown that it was the beneficiary of a trust, that trustees (the Government) had obtained legal advice as mere representatives of the beneficiaries (the Nation) who were the real clients of the lawyers rendering the advice, and that the common law duty of trustees to provide trust-related information to the beneficiaries outweighed the trustees’ personal interests in the attorney client privilege. The Supreme Court acknowledged the continuing vitality of the common law’s fiduciary exception doctrine, but held that the relationship between the Government and the Nation was not sufficiently analogous to the relationship between common law trustees and beneficiaries; that the Government had its own independent legal duties to uphold while administering the trust; and that the statutory schemes enacted by Congress served to limit and alter the scope of duties—including the duty of providing information to the beneficiaries—that normally applies under common law approaches. For those reasons, the Nation’s request was denied. (For the leading case on these issues in California, see Moeller v. Superior Court, 16 Cal.4th 1124 (1997).)

[Update: It occurs to me that the ability of a trustee to assert privilege against the beneficiary is akin to the currently hot topic of the degree to which a lawyer may obtain legal ethics advice from the firm's general counsel (or ethics partner) and keep that advice privileged from a current client.]

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Law of lawyering case, U.S. v. Jicarilla Apache Nation, provides special insights into Justice Sotomayor's jurisprudence?

So says John Paul Rollert, at Slate. (h/t: How Appealing) My summary of the case is below.

It was an 8-1 decision upholding the federal government's assertion of attorney client privilege. Justice Sotomayor didn't like the idea that the federal government was being called a trustee but was exempting itself from the strict fiduciary duties that usually burden trustees. Rollert's final graf:

"Jurisprudential prerogatives, and the moral imperatives that underpin them, are the stuff of lonely dissents, which tend to be less about the law than its shortcomings. They are written accounts of a judge’s reckoning with the oldest dilemma of her profession: that what is legal is not necessarily just, and what is just is not necessarily legal. As Sotomayor attests, they can be telling in their despair."

[Summary] In an action brought by the Jicarilla Apache Nation (“Nation”) against the federal government (“Government”) for mismanagement of trust funds, the Supreme Court of the United States denied the Nation’s request for production of trust-related, attorney privileged communications between the Government and the Government’s lawyers. The Nation had prevailed below by establishing the common law “fiduciary exception” to the attorney client privilege. That is, the Nation had shown that it was the beneficiary of a trust, that trustees (the Government) had obtained legal advice as mere representatives of the beneficiaries (the Nation) who were the real clients of the lawyers rendering the advice, and that the common law duty of trustees to provide trust-related information to the beneficiaries outweighed the trustees’ personal interests in the attorney client privilege. The Supreme Court acknowledged the continuing vitality of the common law’s fiduciary exception doctrine, but held that the relationship between the Government and the Nation was not sufficiently analogous to the relationship between common law trustees and beneficiaries; that the Government had its own independent legal duties to uphold while administering the trust; and that the statutory schemes enacted by Congress served to limit and alter the scope of duties—including the duty of providing information to the beneficiaries—that normally applies under common law approaches. For those reasons, the Nation’s request was denied. (For the leading case on these issues in California, see Moeller v. Superior Court, 16 Cal.4th 1124 (1997).)

[Update: It occurs to me that the ability of a trustee to assert privilege against the beneficiary is akin to the currently hot topic of the degree to which a lawyer may obtain legal ethics advice from the firm's general counsel (or ethics partner) and keep that advice privileged from a current client.]